Beruflich Dokumente
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MARRIAGE
Privacy
Griswold v. Connecticut (1965) The specific guarantees of the Bill of Rights have penumbras that help to give
them life and substance that create zones of privacy. The right of marital privacy is included therein and cannot be
subject to regulations that have an unnecessarily broad sweep.
Eisenstadt v. Baird (1972) A state may not constitutionally discriminate between persons on the basis of their
marital status in regulating the distribution of birth control devices.
In re J.M. (2003) The right to privacy gives one the right to define ones social circle free from public scrutiny
including sexual acts between consenting adults.
Eisenstadt v. Baird (1972) A state may not constitutionally discriminate between persons on the basis of their
marital status in regulating the distribution of birth control devices.
Entering Marriage:
Formal Requirements:
o Licensure
o Solemnization
o GA: License & some form of a ceremony by licensed person
Denton: Even without the license, there can sometimes still be a valid marriage with a ceremony.
Without the formal requirements:
o Common Law Marriage (NOT IN GA: O.C.G.A. 19-3-1.1)
Competent to Contract
Then Living together
Publically known as husband & wife
Parties had meeting of minds to marry
Must be established by C&C Evidence (In Re Estate of Hall)
o Putative Spouse: When a marriage is actually void, with one party at fault & the other remaining
innocent. If either or both parties believe in good faith that marriage is valid and have had a marriage
ceremony then the person so believing is a putative spouse entitled to property after death of other person.
(In Re Estate of Vargas)
Property Division Theories:
o Quasi-Marital Property = Property acquired during the putative marriage is treated as
community property as if it were acquired during a legal marriage
o Marriage as a partnership = Putative wife is entitled to 50% of assets man acquired
during the second/putative marriage.
o Void v. Voidable:
Void: Couple never married and therefore no judicial intervention required to end it
Can be attacked by anyone, not just one of the spouses
Cannot be ratified (made into a marriage by some action of the parties)
No division of property
Voidable:Is valid until annulled by a judge/requires judicial action to be ended
Attackable only by parties to marriage
Can be ratified in some cases
Can be property division in an annulment proceeding
Subst. Requirements: (1) Age; (2) Non-Relation; (3) Monogamy; (4) Consent = (A) No Fraud & (B) No Duress
Constitutional Right to Marry:
o A statutory classification which significantly interferes with the exercise of a fundamental right cannot be
upheld unless it is supported by sufficiently important state interests and is clearly tailored to effectuate
only those interests. (Zablocki) Equal Protection Violation
o Obergefell v. Hodges = Marriage is a fundamental right:
1. Decisions about marriage are among the most intimate that an individual can make
2. The right supports a 2-person union unlike any other in its importance to committed individuals
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3. Marriage safeguards children and families and thus draws meaning from the related rights of
childrearing, procreation, and education
4. Marriage is the keystone to the Nations social order and denying it based on sexual orientation
is demeaning.
Consequences of Marriage:
Changing Names
o Common Law
o Petition to Court
o Divorce can change back to maiden name
Duty to Support:
o McGuire - To maintain an action for suitable maintenance and support, the parties must be separated or
living apart from each other. The court will not interfere this deep in the marital relationship.
o Common Law Necessities Doctrine: common law duty of husband to pay for necessary expenses
(necessary to the well-being) of wife
Separation Exception:
If wife left bed & board of H without good cause, H not responsible for necessaries of
wife (and could seek damages to others for providing her with necessaries)
If wife left with good cause, then merchants could seek reimbursement from H for
providing necessaries
o Creditor had burden of proving separation fault of H and therefore H liability
Spouse seeking to benefit from exception must show that provider had notice of
separation (Forsyth Memorial Hospital v. Chisolm)
Domestic Violence:
o Civil or Criminal remedies
o Criminal No Drop Policies
& Mandatory Arrest Policies.
DIVORCE
Generally:
No-Fault Divorce:
o No-fault Statutes: basis for divorce is marital breakdown without requiring proof of why it broke down or
any fault at all
o No Fault Divorce Jurisdictions: have no fault based grounds for divorce
o MMDA: standard for dissolution = irretrievable breakdown, shown by:
Parties live separate and apart for 180 days; or
Serious marital discord adversely affecting attitude of one or both parties
o 2 categories of no-fault provisions:
1. Descriptive no-fault jurisdictions: statutes just describe what constitutes a marriage that is
broken down completely broken down (Georgia does this)
Require a finding that the marriage is irretrievably broken = O.C.G.A. 19-5-3(13)
{Georgia has a little bit of objectivity thrown in}
Or that the spouses relationship is characterized by incompatibility (Oklahoma),
insupportability (Texas), or by irreconcilable differences (South Dakota)
2. Objective Rules no fault jurisdictions: require separation for specific period of time (6
months, one year, two years) for a divorce without proving fault
Grant divorces upon a finding that the couple has lived separate and apart for a
specified period of time
Can be a bad idea because the people are stuck until that time lapses (like in an abusive
situation)
Vermont, Montana, Rhode Island, and Utah
o Right to Divorce?
Boddie v. Connecticut (SCOTUS 1971)
Appellants could not het divorces because they could not pay filing fees/were indigent
Brought 14th amendment Due Process Clause claim saying that they were denied access
to courts and process for getting divorce.
SCOTUS agreed and noted the importance of marriage to society and that lack of access
to divorce means a prohibition on remarriage
Does the right to marry mean that there is a right to divorce? If so, do no-fault rules or faultbased rules of divorce make more sense?
Does the social conception of marriage matter to answering the question?
*The court in Obergefell said that because homosexuality is an immutable characteristic,
it is protected
o Counterargument youre already in the marriage, so you already accessed the
right, its not limiting the right because its already been used.
o
o
Divorce Jurisdiction:
A State cannot completely preclude a person from getting a divorce based on an inability to pay. But they can
delay the divorce so that the state can obtain jurisdiction. Domicile of 1 party can be used to support jurisdiction
over the divorce and the states have the right to determine their own domicile rules. (Sosna v. Iowa)
o For divorce, you just need the in rem jurisdiction over the marriage. Therefore, do not need jurisdiction
over both parties.
For alimony, property division, child support, you need personal jurisdiction over both parties. (Kulko)
PROPERTY DIVISION
**WORLD OF EQUITY/FAIRNESS
Analysis of property division issues:
1. Is an item property?
2. Is the property marital or separate? Must determine how marital property identified/classified?
3. (If it's marital property) How much is it worth?
4. What is the standard for division? Equitable? Equal?
a. If equitable, what factors are relevant in determining equitable division?
b. What presumptions for distribution exist, if any?
General:
*Marital Misconduct
*Financial Misconduct
* = GA Recognizes this as a factor
Community Property Jurisdictions with Equal Division (3)
o Rule: Strict equal division of community property (straight down the middle)
o Therefore, litigation is generally not over how to divide marital property, but over what constitutes marital
property and its value.
Timing:
Beginning of Marriage:
o With no premarital cohabitation, its fairly easy: when the formal requirements are complied with
o With premarital cohabitation, it can be harderespecially when the parties acquired assets together
during this time
Some courts permit inclusion of these assets in the marital estate (Georgia has not)
Others allow separate enforcement
Others dont allow the property to be divided at all as part of marital property
Engagement period marital income
End of Marriage:
o Date when the divorce petition is filed
o Date of divorce decree (Georgia or final maintenance decree)
o CA: When couples live separate and apart but only separation that is complete and final break counts
Valuation of Property:
o Most recent date: The last date the court can valuate the property (Majority & ALI)
The day the property is divided. The goal is to make the valuation as close to division as possible
because value can change.
o End of marriage: Valuation at the time of the divorce decree (see end of marriage, above)
Is it Property?
tangible assets and which is the result of the tendency of clients/patients to return and recommend the practice
irrespective of the reputation of the individual practitioner.
Marital or Separate?
Debt:
o
Shares: Set the shares each spouse will receive when the benefit accrues (often used when there is a possibility of
the property being speculative)
Lump Sum (Niroo): The court must fix a value for future income. They will use evidence of experts, statistics and
history to determine the award amount.
Reserve Judgment: Make an appropriate order on the payment at the time the income is received or can be
determined with relative certainty.
ALIMONY
Theories of Alimony:
In the Model Marriage & Divorce Act, alimony is based on two factors:
o Spouse unable to meet reasonable needs; and
o Unable support self with appropriate employment (including because needs to care for child)
Fault not considered
Alimony can be temporary or permanent depending on:
o Financial resources of persons seeking alimony
o Time needed to acquire education or training for appropriate employment
o Standard of living during marriage
o Duration of marriage
o Age & physical condition of spouse seeking alimony
o Ability of spouse not seeking alimony to meet own needs and support needs of other spouse
Georgia & Other Fault States If there was an affair, you want to argue that the affair was equally the fault of the other
party that you had the affair.
Types of Alimony
Rehabilitation:
o Need will go away; communicates state expectation that obligee will be able to support self
o Places burden on obligee to get it changed
o Limits obligors responsibilities
o Downsides: projections could be wrong; courts want to reserve jurisdiction to avoid unjust/wrong
predictions
o (GA generally takes this approach)
o (Hecker) The terms of an order respecting maintenance or support may be modified upon a showing that
there has been a substantial change in circumstances and that the substantial change has the effect of
rendering the original award unreasonable and unfair. (Even if the failure to rehabilitate was willful)
Permanent:
o Need will not go away; communicates state expectations that obligee will not be able to support self
o Burden on obligor for change
o Almost unlimited obligor responsibility
o Downsides: projections could be wrong; could result in unfairness to obligor
o (Rainwater) A court may order indefinite maintenance if a wifes reasonably anticipated income would
not meet her reasonable needs as determined by reference to the standard of living established during the
marriage.
The term remarriage does not necessarily mean that there has been a marriage in fact, but can
encompass a relationship in which the parties live together for a substantial period of time and appear to
maintain a marital relationship. (OConnor Brothers Abalone Co. v. Brando)
*This is based on the theories of marriage.
An intimate relationship that results in cohabitation can constitute a change in circumstances to
terminate alimony. (Love)
Jurisdiction:
o In order for a court to modify alimony the court must have personal jurisdiction over both parties
established through sufficient minimum contacts with the forum. (Kulko)
o
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PRENUPTIAL AGREEMENTS
Why Couples Enter Prenuptial Agreements:
Protect children from prior marriage from losing their full share of interest in parents property to new spouse
Want to prevent spouse from ever getting share of rich partners assets regardless of whether there are children
from prior marriage
Ultimately either reason works to the same end: to avoid rules regarding alimony and property division
o Can remove some or all assets from community property or equitable division regimes
o Alter what would be the alimony
Historically, contracts contemplating divorce were not enforceable as against public policy
o GA case, Scherer v. Scherer, was the case that sparked changes in the view towards pre-nups:
Not against public policy to anticipate divorce and enter agreement as long as contract entered
with full knowledge and without fraud, duress, or coercion.
Some states will not enforce an agreement that encourages or incentivizes divorce:
o Seems to depend on whether award was bonus (v. something elselike not placing a spouse in a worse
position than if never married at the other end of the continuum)
Most states (Including GA) requires a writing.
All jxs. require some form of disclosure of assets
(Button) The 3 requirements for a valid prenuptial agreement are that the agreement must be freely and voluntarily
entered, must make fair and reasonable disclosure of finances, and must be substantively fair.
o 1. Full & fair disclosure by both parties (of financial status including assets) (procedural)
o 2. Freely & voluntarily entered into (procedural)
Have to have had a meaningful choice
Full understanding of the terms with time to review it
Access to counsel (Whether or not they had independent counsel is a factor, but is not dispositive)
Did you understand the default rules?
o 3. Substantively fair to both parties
Does not have to be equal the substantive terms just have to be FAIR
At the time of drafting
o The court will however look at substantive fairness at the time of enforcement if
there has been a change in circumstances.
o What will constitute a significant change in circumstances? Health crisis.
The Court will not just go to the same conclusion they would if there was no prenup
Factors:
Objectives of the parties in executing an agreement
Economic circumstance of the parties
Property brought to the marriage by each party
Spouses other family obligations and relationships
Earning capacity of each person
Contributions to the education of the other spouse
Future needs of the respective spouses
The age, physical, and emotional health of the parties
(Gant) Court will uphold prenuptial agreements when the circumstances play out how the parties reasonably
foresaw them at the time of entering the agreement.
ALI: Substantive fairness only reviewed if circumstances have changed:
o Birth or adoption of child when parties had no common children at prenuptial agreement
o Number of years have passed
o Change having a substantial impact that neither party anticipated
(Simeone) Prenuptial agreements receive the same level of scrutiny as any other kind of contract
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(Also, a prenuptial agreement cant contract in a way that is against public policy i.e. putting fault into it in a
no-fault state)
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CHILD CUSTODY
BEST INTERESTS OF THE CHILD
BIC Factors whats not permissible is easier to consider than what is:
Income
Working mothers presumptively worse than non-working mothers
Race/ethnicity (mostly)
o Race: cannot be considered except some courts will consider it for multi-racial childrensame is true for
culture
Immoral conduct and sexual conduct on its own does not bar award of custody to a parent without some harmful
effect on child
Primary caretaker can get a preference; emotional bonds with children also get strong consideration
o Preference (with varying degrees of strength) for giving custody to parent who was primary caretaker
Preference expressed by giving greater weight to this factor than other BIC factors or by using a
presumption in its favor
Parents interests are not very explicitly taken into account but often in practice are considered
Gender normsbiases and assumptions can play a role in custody decisions
DVis considered but not in a uniform way (i.e., its mere existence does not always have an impact on custody)
Religion generally not a factor in BIC determination unless it implicates some level of potential or actual harm to
the childrennumerous standards range from some potential harm being a BIC factor to actual harm being
required
Sexual orientation?
Health of parent: could affect custody if seriously impair ability to care for child
Health of child: could affect custody if one parent has better knowledge or ability to care for child
Sex matching: could affect custody, especially for older children
Georgia: threshold for getting legal custody is legal paternity; long, non-exhaustive list of potential BIC factors to
consider (O.C.G.A. 19-9-3(a)(3))
Alienation of a childs affections for other parent may also be a factor in determining custody (in GA it is);
sustained alienation can outweigh other factors and deprive offending parent of custody
Childrens preferences for which parent they want to live with will be given some preference in most jurisdictions
the older the child generally the more weight to the preference
o In Georgia, the preferences of children of 14+ is nearly dispositive and only overcome by a showing
preference is not in childs BI
GAL v. Childs Attorney: different roles; different responsibilities (generally, representing BIC v. expressed
interests)
Visitation Rights:
Visitation is strongly favored generally and in Georgia too; have to show detriment to child to deny visitation
So, in Georgia & generally: parents behavior on visitation generally only relevant to the extent it harms the child
Presumption that fit parents act in BIC
o Statutes that (at least as applied) do not give deference to this presumption and some increased weight to
parental decisions when allocating visitation rights are likely unconstitutional
o A showing of harm without visitation is sufficient to overcome presumption but not necessarily necessary
Georgia: grandparents can seek visitation, however OCGA 19-7-3(c) requires the court to find that harm would
result if visits were not granted.
Some courts recognize psychological, or de facto, parents, and when they do they can have something like to
parity of legal rights probably not custody but presumptive visitation (V.C. v. M.J.B.)
NJ: recognizes psychological parents, based on evaluation of the following factors:
o Biological or adoptive parent has consented to and fostered the establishment of the parent-child
relationship
o Non-legal parent and child lived together in same household
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Non-legal parent assumed responsibility for childs care, education, development, and contributed to
childs support (not necessary monetarily) without expectation of compensation
o Non-legal parent in parental role for length of time sufficient to establish bonded, dependent parental
relationship
o Once established, stand in parity with legal parentbut have presumptive rights to visitation but not
custody
Other standards:
o Parent prevails against non-parent unless parent is shown to be unfit
o Parent prevails unless parental custody shown to cause substantial harm to child
o Parent prevails unless extraordinary circumstances
o Non-parent only has standing to seek custody if the child is not in the custody of the legal parent(s)
Georgia: in custody dispute between parent and non-parent, there is a presumption in favor of the parent that can
be rebut by a showing of physical harm or significant, long-term emotional harm
o Trial courts have to consider:
Who are the past and present caretakers of the child;
With whom has the child formed psychological bonds and how strong are those bonds;
Have the competing parties evidenced interest in, and contact with, the child over time; and
Does the child have unique medical or psychological needs that one party is better able to meet.
o
Modification of Custody
Generally, changes in custody require (1) some significant, new change in circumstances; and (2) only
then can courts inquire into whether change would be in BIC (so courts inquiry & evidence taken limited
in first part of test)
Whether change in circumstances test applies may depend on whether there was a court order for custody
v. de facto or de jure custodysome courts will not apply change in circumstances test without a prior
custody determination by a court
For changes of custody in Georgia: significant change in circumstances test and then a BIC test if the
significant change in circumstances is shown
For a change in custody based on a relocation:
o Some courts will require a showing that the move is detrimental; then a BIC inquiry showing that
a change in custody is necessary to childs well-being (LaMusga)
o With potential threshold question of whether the move is in good faith
o Some courts will apply regular change in circumstances (then BIC) test
o Some courts will put burden of proof on non-custodial parent to prove relocation not in best
interests of child
o Some courts will put burden of proof on relocating parent to show relocation is in childs best
interests
o For joint custody, a BIC standard is generally appliedbut relocation is harder
o Constitutional rights to travel v. relationship with children implicated in these cases
o For Georgia relocation cases: custody modification based on relocation requires a showing of
a new, material change of circumstances (good or bad), and if shown, the BIC applies
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